Citation Nr: 0934586
Decision Date: 09/15/09 Archive Date: 09/23/09
DOCKET NO. 08 04-416 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUE
Entitlement to an initial disability rating greater than 50
percent for posttraumatic stress disorder.
REPRESENTATION
Appellant represented by: Military Order of the Purple
Heart of the U.S.A.
ATTORNEY FOR THE BOARD
Jared Haynie, Law Clerk
INTRODUCTION
The Veteran served on active duty from September 1967 to
September 1969.
This matter comes before the Board of Veterans' Appeals
(Board) from a February 2006 rating decision of a Department
of Veterans Affairs (VA) Regional Office that granted service
connection for posttraumatic stress disorder and awarded a 50
percent disability rating, effective December 2, 2005.
FINDING OF FACT
Since December 2, 2005, the Veteran's posttraumatic stress
disorder has been manifested by disturbed sleep with
nightmares, intrusive thoughts, flashbacks, a startle
response, hypervigilance, emotional numbing, irritability,
avoidance of reminders, social withdrawal, and depression.
CONCLUSION OF LAW
The criteria for a 70 percent rating, but no higher, for
posttraumatic stress disorder have been met since December 2,
2005. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§
4.7, 4.130, Diagnostic Code (DC) 9411 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Higher Initial Rating
Ratings for service-connected disabilities are determined by
comparing the veteran's symptoms with criteria listed in VA's
Schedule for Rating Disabilities. The rating percentages
represent, as far as practically can be determined, the
average impairment of the veteran's earning capacity. 38
C.F.R. § 4.1 (2008); see also 38 C.F.R. § 4.2 (2008) ("Each
disability must be considered from the point of view of the
veteran working or seeking work."). Thus, for example, a
person having a 60 percent disability rating is considered 40
percent efficient. 38 C.F.R. § 4.25 (2008). Separate
diagnostic codes identify the various disabilities. 38
C.F.R. Part 4 (2008).
When rating a service-connected disability, VA must consider
the entire history of the disability. 38 C.F.R. § 4.1
(2008); see also Schafrath v. Derwinski, 1 Vet. App. 589, 596
(1991) (rating decisions must be based on a review of the
"full recorded history of the condition"). VA assigns the
disability rating that most closely reflects the level of
social and occupational impairment a veteran is suffering.
Where a question arises as to which of two ratings to apply,
the higher rating will be assigned if the "disability
picture" more nearly approximates the criteria required for
that rating; otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7 (2008). When a reasonable doubt arises as to
the degree of a veteran's disability, VA resolves such doubt
in the veteran's favor. 38 C.F.R. § 4.3 (2008).
Moreover, when assigning a disability rating, VA is obligated
to consider whether a veteran is entitled to "staged"
ratings (separate ratings assigned for separate time
periods). Hart v. Mansfield, 21 Vet. App. 505, 510 (2007)
(staged ratings for increased-rating claims); Fenderson v.
West, 12 Vet. App. 119, 126 (1999) (staged ratings for
initial-rating claims). VA's ability to assign staged
ratings reflects the "possible dynamic nature of a
disability while the claim works its way through the
adjudication process." O'Connell v. Nicholson, 21 Vet. App.
89, 93 (2007).
In the case at bar, the RO rated the Veteran's posttraumatic
stress disorder (PTSD) as 50 percent disabling under DC 9411.
Under DC 9411, a 50 percent disability rating is assigned
when there is occupational and social impairment with reduced
reliability and productivity due to such symptoms as
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment of
short- and long-term memory (e.g., retention of only highly
learned material, forgetting to complete tasks); impaired
judgment; impaired abstract thinking; disturbances of
motivation and mood; difficulty in establishing and
maintaining effective work and social relationships.
A 70 percent rating is warranted where the psychiatric
condition produces occupational and social impairment, with
deficiencies in most areas (such as work, school, family
relations, judgment, thinking, or mood), due to such symptoms
as suicidal ideation; obsessional rituals which interfere
with routine activities; speech intermittently illogical,
obscure, or irrelevant; near-continuous panic or depression
affecting the ability to function independently,
appropriately, and effectively; impaired impulse control
(such as unprovoked irritability with periods of violence);
spatial disorientation; neglect of personal appearance and
hygiene; difficulty in adapting to stressful circumstances
(including work or a work-like setting); inability to
establish and maintain effective relationships.
A maximum 100 percent rating is warranted where there is
total occupational or social impairment due to such symptoms
as gross impairment in thought processes or communication;
persistent delusions or hallucinations; grossly inappropriate
behavior; persistent danger of hurting self or others;
intermittent inability to perform activities of daily living
(including maintenance of minimal personal hygiene);
disorientation to time or place, memory loss for names of
close relatives, own occupation, or own name. 38 C.F.R. §
4.130, DC 9411.
The psychiatric symptoms listed in the above rating criteria
are not exclusive. Rather, they "serve as examples of the
type and degree of the symptoms, or their effects, that would
justify a particular rating." Mauerhan v. Principi, 16 Vet.
App. 436, 442 (2002). When assigning disability ratings, the
Board is not required "to find the presence of all, most, or
even some, of the enumerated symptoms" because the rating
criteria simply "provide[ ] guidance as to the severity of
symptoms contemplated for each rating." Id. (emphasis
added). The Board considers all symptoms (regardless of
whether they are listed in the Diagnostic Code criteria),
"particular to each veteran and disorder, and the effect of
those symptoms on the claimant's social and work situation."
Id. After considering all the symptoms, the Board assigns an
appropriate rating that corresponds to the level of social or
occupational impairment "equivalent to what would be caused
by the symptoms listed in the diagnostic code." Id. at 443.
In this case, the Veteran did not receive treatment for PTSD
prior to undergoing a VA psychiatric examination in January
2006. At that examination, the Veteran described his then-
current PTSD symptoms as recurrent, intrusive, and
distressing recollections of "the event"-meaning his in-
service combat injury. (The Veteran served as a combat
service medic and was wounded while tending to a wounded
soldier under enemy fire.) He further reported having
recurrent, distressing dreams of the event; acting or feeling
as if the event were recurring (including a sense of reliving
the event); having flashback episodes; and experiencing
intense psychological distress-as well as physiological
reactivity-upon exposure to internal or external cues that
symbolize or resemble an aspect of the event. He also
reported an inability "to recall an important aspect of the
trauma."
The Veteran reported that he makes a conscious effort to
avoid thoughts, feelings, or conversations associated with
the event, and avoids activities, places, or people that
could arouse recollections of the event. He reported feeling
detached or estranged from others; having a "[r]estricted
range of effect (e.g., unable to have loving feelings), [and
a s]ense of a foreshortened future (e.g., does not expect to
have a career, marriage, children, or normal life span)."
He also reported a "[m]arkedly diminished interest or
participation in significant activities."
The Veteran reported that he has difficulty falling or
staying asleep and displays irritability or outbursts of
anger, difficulty concentrating, hypervigilance, and
exaggerated startle response. The Veteran's symptoms bother
him daily, and his "[o]nly significant remission" is when
he focuses on something else. He reported occasional
suicidal thoughts, adding that his religious beliefs "keep
him from doing anything."
Mental status examination revealed a dysphoric (depressed)
mood, with an appropriate affect. His thought process was
described as logical, goal-oriented, and coherent. His
psychomotor activity was unremarkable. His speech was
spontaneous, clear, and coherent. His judgment and attention
were intact and there was no evidence of delusions. His
memory for recent and remote events was evaluated as normal.
He denied experiencing homicidal ideations. He also denied
alcohol or other substance use.
As to the Veteran's occupational history, the Veteran related
that he recently retired from the U.S. Postal Service (after
thirty-one years of service) because he was eligible to do so
"by age or duration of work." The examiner noted that
since retirement, the Veteran is "no longer able to use work
to distract from PTSD symptoms," and that accordingly, his
symptoms "have begun to [b]other him more." The Veteran
reported that he is working to open a baseball trading card
shop and that he volunteers during basketball season as a
scorekeeper for local college basketball games.
As to his social history, the Veteran stated that he has
never married. He stated that he has "many acquaintances
but no friends." The examiner noted that the Veteran has
"[d]ifficulty letting people close to him" and that the
Veteran is "[i]solated from people" and has "[l]imited
social activity, mostly structured, church, volunteer work
keeping score for college games."
The examiner diagnosed the Veteran with chronic PTSD, as well
as depression NOS (not otherwise specified), secondary to his
PTSD. He assigned the Veteran a Global Assessment of
Functioning (GAF) score of 45, as "[s]hown by major problems
in several areas of his life." The examiner evaluated the
effects of PTSD on the Veteran's social and occupational
functioning. The examiner made separate evaluations in five
specific functional areas. In four of those areas (inability
to perform work tasks; decreased efficiency, productivity,
and reliability), the examiner rated the severity of the
impact as "[m]ild or transient" and its frequency as
"[o]nly during periods of stress" (except for decreased
efficiency, which was rated as "[o]ccasional" in
frequency). In the fifth area (impaired work, family, and
other relationships), however, the examiner rated the
severity of the impact as "[m]oderate" and its frequency as
"[a]lways."
VA treatment records dated from June 2006 to March 2007 show
regular treatment for various PTSD symptoms, including
avoidance, hypervigilance, flashbacks, nightmares, night
sweats, startle reaction, depression, anxiety, and intrusive
thoughts. These records also show, however, that in June
2006, the Veteran indicated that he had no complaint of
"depression or anxiety." Moreover, in August 2006, the
Veteran reported that he "has supportive family" and that
his "PTSD symptoms are in relative remission with present
milieu" (at the time, the Veteran was taking medication to
"calm his nerves and stabilize his depression"). From June
2006 to February 2007, the Veteran consistently reported that
he had no homicidal or suicidal ideations. At a regular
treatment visit in February 2007, the Veteran complained that
the severity of his PTSD symptoms seemed to be "increasing
daily."
In April 2007, the Veteran underwent a second VA psychiatric
examination. At that time, he reported, in large measure,
the same symptoms he described at his first psychiatric
examination (in January 2006). He reiterated his "fleeting
suicidal thinking"; his difficulty falling and staying
asleep; his persistent and recurrent recollections of the
traumatic event; his efforts to avoid any thoughts, feelings,
people, or places that trigger his memory of the event; and
feeling detached and estranged from others. As to these
symptoms, the examiner noted there had been "no significant
periods of remission" and that the Veteran displayed
"limited capacity to adjust."
A mental status examination again revealed a depressed mood.
This time, however, the Veteran displayed a "[c]onstricted,
[b]lunted" affect and exhibited "[f]atigued" psychomotor
activity. Moreover, his thought process was unremarkable and
his speech lacked spontaneity. Consistent with his first
examination, the Veteran's judgment and attention were
intact; there was no evidence of delusions; his memory for
recent and remote events was determined to be normal; and he
denied experiencing homicidal ideations. He denied alcohol
or other substance use.
As to his social history, the Veteran revealed that he has a
sister and a half brother, but that he has little or no
contact with them; that he has acquaintances "but no one I'm
really close to." He added that he lives alone, attends
church weekly, does some reading and gardening, and has
"good neighbors." The examiner noted that the Veteran
"tends to isolate," "fears crowds[,] and has heightened
expectation of harm that is not realistic." The Veteran
reported that his vigilance in groups had increased since his
last examination. He also reported that he had been
unsuccessful, as yet, in getting his baseball card business
off the ground.
The examiner diagnosed the Veteran with chronic PTSD,
depressive disorder NOS, and pain disorder associated with
psychological factors and wounds sustained during combat (the
latter two conditions evaluated as secondary to his PTSD).
He assigned the Veteran a GAF score of 42 and commented that
the Veteran's "psychosocial functions continue to
deteriorate," and that his "symptoms are severe[,]
including memories, avoidance, and arousal." The examiner
noted that his "symptoms of depression" had likewise
"increased."
The examiner evaluated the effects of PTSD on the Veteran's
social and occupational functioning. He did not believe the
Veteran's PTSD symptoms cause him to experience total
occupational and social impairment. The examiner did
believe, however, that the Veteran's PTSD symptoms cause him
to experience deficiencies in judgment (pointing to his fear
of crowds and an irrational expectation of harm); thinking
(preoccupied with combat memories and triggers that remind
him of combat); family relations (rarely talks with family);
work (unable to get baseball card business going); and mood
(depressed mood with reactive affect, sometimes irritable).
VA treatment records dated from July 2007 to November 2007
show continued treatment for PTSD symptoms, including
difficulty sleeping, depression, avoidance, and distrust of
others. The October 2007 treatment record notes that the
Veteran had no homicidal or suicidal ideations.
As discussed above, the Veteran's January 2006 and April 2007
examinations assigned GAF scores for PTSD of 45 and 42,
respectively. The GAF Scale is a reflection of the
"psychological, social, and occupational functioning on a
hypothetical continuum of mental health-illness."
Diagnostic and Statistical Manual of Mental Disorders 46-47
(4th ed. 1994) (hereinafter DSM-IV). VA assigns a disability
rating based on "all the evidence of record" (including, in
this case, an examiner's assignment of a GAF score) that
"bears on" the Veteran's social and occupational
impairment. 38 C.F.R. § 4.126(a) (2008). Accordingly, a GAF
score is one factor to be considered, but in no case is it
dispositive, in making a rating determination. See
VAOPGCPREC 10-95, 60 Fed. Reg. 43,186, 43,186 (Aug. 18, 1995)
(VA General Counsel's legal opinion to the effect that VA may
reference "medical reports which employ [DSM-IV] adaptive-
functioning assessment scales," but cautioning that the
"utility of such reports may be limited by differences
between the terminology and disability levels used in those
scales and those employed in [VA regulations]").
GAF scores of 45 and 42 (that is, scores between 41 and 50)
generally reflect "[s]erious symptoms" (such as suicidal
ideation, severe obsessional rituals, frequent shoplifting)
or "any serious impairment in social, occupational, or
school functioning" (for example, no friends, unable to keep
a job). DSM-IV 46-47.
Here, the Veteran indicated that he has no friends and spends
the vast majority of his time in isolation. The Veteran is
not married and lives alone. In the Veteran's April 2007 VA
psychological examination, he revealed that has a sister and
a half brother, but claimed to have little or no contact with
them (although an August 2006 treatment record shows that the
Veteran reported, at that time, that he "has supportive
family").
The Veteran had a long and apparently stable career working
for the U.S. Postal Service. Since retiring, however, the
evidence of record shows that the Veteran has increasingly
isolated himself from others, and that his depression and
anxiety have correspondingly increased. Moreover, thus far,
he has been unable to establish his small business (baseball
trading card shop).
After considering all the evidence, the Board finds that the
Veteran's increasing difficulty with work and social
environments indicates that his PTSD symptoms fall within the
category of severe PTSD. Indeed, the Veteran's two
psychiatric examinations came to the same conclusion. In so
determining, the Board finds it significant that the Veteran
was assigned GAF scores of 45 and 42, respectively, and
furthermore, that his most recent psychiatric examination
indicated that his symptoms, rather than alleviating, were
increasing in severity.
To grant a 70 percent disability rating, the threshold test
the Board must consider is whether the Veteran's symptoms,
when viewed together as a whole, demonstrate social and
occupational impairment "with deficiencies in most areas."
38 C.F.R. § 4.130, DC 9411. Here, the examiner who examined
the Veteran most recently opined that the Veteran's PTSD
symptoms cause the Veteran to experience deficiencies in
judgment, thinking, family relations, work, and mood. The
examiner clearly believed the Veteran experiences
"deficiencies in most areas," and the Board concurs in that
judgment. Therefore, the Board finds that the Veteran's
disability most nearly approximates a 70 percent disability
rating for PTSD, and has so since the effective date of
service connection.
The Board's determination is bolstered by a review of the
illustrative symptoms listed under the 70 percent disability
rating for mental disorders. As mentioned above, the
illustrative symptoms are meant to serve as helpful
guideposts in making the ultimate rating determination. One
of the illustrative symptoms (under the 70 percent disability
rating) is the "inability to establish and maintain
effective relationships." 38 C.F.R. § 4.130, DC 9411
(2008). Here, the two psychiatric examinations independently
confirm that the Veteran suffers from just such a symptom,
specifically that he is socially "isolated" and is
essentially unable to form effective relationships.
There is evidence that the Veteran's symptoms seem to have
become progressively worse, at least in some respects. For
instance, the Veteran was assigned a GAF score of 45 in
January 2006. Fifteen months later, in April 2007, he was
assigned a GAF score of 42. At the latter examination, the
examiner commented that the Veteran's symptoms had
"increased" since his last examination. Nevertheless,
despite this apparent progression in the Veteran's condition,
the Board finds that the Veteran's condition merits a 70
percent rating that pre-dates the Veteran's most recent
psychological examination and extends back to the effective
date of service connection. The Board specifically finds
that from the time of service connection (December 2005), the
Veteran experienced occupational and social impairment, with
deficiencies in most areas-particularly in the areas of
family relations, thinking, and mood-and further, that he
has, since that time, continuously exhibited symptoms such as
near-continuous depression that affects his ability to
function effectively, unprovoked irritability, and an
inability to establish effective relationships. These PTSD
symptoms have impaired significantly the Veteran's ability to
function in areas related to his occupation and social life.
Accordingly, they warrant a 70 percent disability rating.
The Board also finds, however, that the Veteran's disability
does not warrant more than a 70 percent disability rating
because the preponderance of the evidence is against such a
finding. The Veteran has not been shown to have total
occupational and social impairment, as evidenced by symptoms
such as: gross impairment in thought processes or
communication; persistent delusions or hallucinations;
grossly inappropriate behavior; persistent danger of hurting
self or others; intermittent inability to perform activities
of daily living (including maintenance of minimal personal
hygiene); disorientation to time or place; memory loss for
names of close relatives, own occupation, or own name. In
fact, the Veteran has shown none of these symptoms. Nor has
he shown, to the Board's knowledge, any other symptoms that
would warrant a finding of total social and occupational
impairment. His symptoms, serious as they are, have not
totally impaired his ability to function (except, perhaps, as
manifested in the Veteran's inability to form effective
relationships). In short, the Board finds that an evaluation
in excess of 70 percent is not warranted.
The Board has considered whether the record raises the matter
of an extra-schedular rating. In exceptional cases, where
the regular schedular ratings are found to be inadequate or
impractical, so that justice may be done, VA may apply
(subject to approval by either the Under Secretary for
Benefits or the Director of Compensation and Pension Service)
an "extra-schedular evaluation." 38 C.F.R. § 3.321(b)(1)
(2008). As is the case with regular schedular ratings, the
extra-schedular evaluation must be "commensurate with the
average earning capacity impairment due exclusively to the
service-connected disability or disabilities." Id.
(emphasis added). Before an extra-schedular evaluation may
be applied, VA must make a threshold finding. Specifically,
it must determine that the case "presents such an
exceptional or unusual disability picture with such related
factors as marked interference with employment or frequent
periods of hospitalization as to render impractical the
application of the regular schedular standards." Id.
In this case, the regular schedular ratings are not
inadequate. First, they provide for a higher rating for the
Veteran's PTSD (namely, 100 percent), but evidence supporting
a rating in excess of 70 percent has not been submitted. In
addition, the Veteran has not shown that his service-
connected disability has required frequent periods of
hospitalization or has produced marked interference with his
employment. Rather, the record reflects that the Veteran
retired from his position with the U.S. Postal Service due to
his eligibility on account of his age or length of service.
Although he has not been able to get his baseball card
trading business off the ground, the Board finds that this
finding, alone, does not merit an application of extra-
schedular ratings. The Veteran's case does not present a
truly "exceptional or unusual disability picture."
Therefore, the Board finds that referral of the case for
consideration as to whether an extra-schedular rating should
be assigned is not warranted. Furthermore, because the
evidence does not suggest the Veteran is unemployable because
of his service-connected PTSD (he had retired because he was
eligible to do so and not due to his PTSD), there is no
indication he is entitled to a total disability evaluation
due to individual unemployability based on service-connected
disabilities. See Rice v. Shinseki, 22 Vet. App. 447 (2009).
The Board has likewise considered whether to assign staged
ratings (separate ratings assigned for separate time
periods). See Fenderson v. West, 12 Vet. App. 119, 126
(1999). The Board finds, however, that there is no need to
apply staged ratings in the present case because the weight
of the credible evidence shows that the Veteran's service-
connected PTSD has been 70 percent disabling, but no more,
since December 2, 2005, when service connection became
effective.
Although there was arguably a brief remission of the
Veteran's PTSD symptoms during the summer of 2006-(when the
Veteran reported that his PTSD symptoms were "in relative
remission")-nevertheless, the Board finds that there is
insufficient evidence of record to merit an assignment of
staged ratings. Significantly, the Veteran did not address
whether his ability to develop and maintain effective
relationships had improved, nor did he elaborate as to which
symptoms seemed to be improving. The Board finds that this
case involves a reasonable doubt arising as to the degree of
the Veteran's disability during that period, and resolves
that doubt in his favor. See 38 C.F.R. § 4.3 (2008); see
also 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102
(2008); Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990) (if
the Board rules against a veteran in a case where there are
"two permissible views" of the evidence, the Board must
provide an "adequate statement of [its] reasons or bases"
in support of its determination that the veteran is not
entitled to the benefit of the doubt) (internal quotations
omitted).
Initial-Rating Claims Versus Increased-Rating Claims
The Board makes one final clarification. Specifically, it
observes that this case is an initial-rating case, not an
increased-rating case. The Veteran filed his claim for
service connection for PTSD on December 2, 2005. In February
2006, the RO issued a rating decision, granting service
connection at a 50 percent rating evaluation. The RO
notified the Veteran of its rating decision in a letter dated
February 21, 2006. On February 20, 2007-three hundred and
sixty-four days later-the RO received the Veteran's written
objection to the rating decision. The RO mistakenly treated
the Veteran's written objection as a new claim for an
increased rating (rather than as a notice of disagreement as
to the initial rating decision).
By statute, a veteran's notice of disagreement must be filed
"within one year from the date of mailing of notice" of the
rating decision. 38 U.S.C.A. § 7105(a) (West 2002). If no
notice of disagreement is filed within that statutory period,
the decision becomes final. Id. § 7105(c). Because the
Veteran here filed a timely notice of disagreement, the
February 2006 rating decision never became final, and
therefore, the Veteran's claim here is properly a claim for
an initial disability rating of greater than 50 percent (and
not a claim for increased rating).
VA's Duties to Notify and Assist
VA has a duty to notify and assist each claimant in
substantiating his or her claim for VA benefits. 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a).
VA's notice obligations have been met. Once service
connection has been granted and an initial disability rating
and effective date have been assigned, "the typical service-
connection claim has been more than substantiated-it has
been proven, thereby rendering section 5103(a) notice no
longer required because the purpose that the notice is
intended to serve has been fulfilled." Dingess v.
Nicholson, 19 Vet. App. 473, 491 (2006). Any defect in the
notice is therefore nonprejudicial. Cf. Dunlap v. Nicholson,
21 Vet. App. 112, 119 (2007) (claimant remains free to
demonstrate how such a notification error was prejudicial).
As noted above, in this case the Veteran's claim for an
increased initial rating for PTSD arises from his
disagreement with the initial rating assigned following the
grant of service connection. Because service connection has
been granted, the Veteran's claim has been "proven" and
5103(a) notice is "no longer required." Accordingly, the
Board finds that VA satisfied its duties to notify the
Veteran in this case.
VA also has a duty to assist the Veteran in the development
of the claim. This duty includes (1) assisting the Veteran
in the procurement of service treatment records and other
pertinent records and (2) providing an examination when
necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
Here, the Veteran's relevant available service treatment
records and VA medical treatment records have been obtained.
Moreover, by letter dated January 9, 2006, VA notified the
Veteran of his obligation to give VA "enough information"
about evidence not in his possession (for example, private
medical records) to enable VA to request such evidence "from
the person or agency that has it." The Veteran, however,
submitted no identifying information to VA. Accordingly, VA
was under no duty to make efforts to obtain private medical
records.
When VA is obligated to provide a veteran with a medical
examination or opinion, that examination or opinion must be
legally "adequate." Barr v. Nicholson, 21 Vet. App. 303,
311-12 (2007). To that end, the examination must be both
"thorough and contemporaneous." Caluza v. Brown, 7 Vet.
App. 498, 505-506 (1995) (applying pre-VCAA law); accord
Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007). A
thorough examination "must support its conclusion with an
analysis that the Board can consider and weigh against
contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120,
124 (2007). In other words, it must provide "sufficient
detail" to enable the Board to make a "fully informed
evaluation." Id.
A contemporaneous examination assures that the record
adequately reflects the current state of the claimant's
disability. The "mere passage of time," without more,
(between the time of the claimant's examination and the time
of the Board's decision on the claim) does not render the
examination inadequate. Palczewski, 21 Vet. App. at 180.
Rather, to trigger VA's duty to consider whether an
additional medical examination is necessary to render a
decision in the case, the claimant must submit some
additional lay or medical evidence showing a change in his
condition since his last examination of record. Id. at 182.
Here, the Veteran was afforded two VA psychological
examinations. The Veteran does not object to the adequacy of
either. The Board finds these examinations and their
accompanying opinions to be adequate. First, they were both
thorough. The examiners reviewed the Veteran's medical
history and all supporting lay statements (namely, the
Veteran's lay statements). Second, there is no evidence
indicating that there has been a material change in the
severity of the Veteran's PTSD since he was last examined.
Because the Board finds the two examinations here to be
legally adequate, VA is under no duty to provide another
examination or to obtain an additional medical opinion.
In sum, the Board finds that VA has fulfilled its duty to
assist in every respect.
ORDER
An initial 70 percent disability rating, but no more, for
PTSD is granted, effective December 2, 2005.
____________________________________________
L. M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs